Court of Appeal said that the High Court judge failed to establish facts and the prosecution did not produce a key material witness.
FULL REPORT
PUTRAJAYA: In a unanimous decision, the Court of Appeal released two former policemen who were sentenced to death by the High Court for murdering Mongolian national, Altantuya Shaariibuu.
“There are gaps in the evidence submitted and there is no sufficient evidence that links the accused to the crime as required under Section 27 of the Police Act,” judge Tengku Maimun Tuan Mat said while reading the gist of the judgment.
“The learned High Court judge also failed to establish the links the jewellery found on Altantuya to the two accused,” she said.
The other judges presiding the case were Apandi Ali and Linton Albert.
Tengku Maimun added that the High Court judge also failed to establish the credibility of the prosecution witnesses. The judges also found that the High Court failed to establish a common intent on the part of the defendants.
In a 4-page summary judgment, the court ruled that the High Court judge had misdirected himself in convicting them.
Justice Tengku Maimun, who read out the judgment, said the trial judge had misdirected himself by way of non-direction in failing to consider the station diary and in failing to make a finding whether the defence had cast a reasonable doubt on the prosecutions’s case that Azilah who was the first accused in the case, was at the scene of the crime.
Justice Tengku Maimun said on Azilah Hadri’s defence alibi, the court did not find anywhere in the trial judge’s grounds of judgment that he had considered whether the station diary showed or tend to show that Azilah’s presence at Bukit Aman at the material time and he could not be or was unlikely to be at the crime scene.
“Looking at the whole circumstances of this case, it is our judgment that the cumulative effect of the non-directions by the learned trial judge rendered the conviction of the appellants unsafe. We, unanimously allow both appeals,” said Justice Tengku Maimun.
Ex-Special Action Unit personnel Corporal Sirul Azhar Umar and Chief Inspector Azilah Hadri were arrested seven years ago for Altantuya’s murder. The courtroom was silent today when the judge delivered the judgment while Azilah, 34, and Sirul Azhar, 39, looked calm after the verdict.
Sirul and Azilah were found guilty and sentenced to death in 2009 for murdering Altantuya, in Shah Alam in October 2006.
Two months ago the Court of Appeal had allowed the duo to appeal against the sentencing.
Sirul’s lawyer Kamarul Hisham Kamaruddin questioned whether the High Court was influenced by “adverse publicity” and “real and possible danger” which could have influenced the decision which was prejudicial against Sirul.
Kamarul Hisham also had applied to include additional documents in their appeal.
The third accused in this case – former political analyst Abdul Razak Baginda – who was charged for abetting with the duo was acquitted on Oct 31, 2008 , due to the prosecution’s failure to establish a prima facie case.
Grounds for judgment
In the judgment, the court set up eight grounds in acquitting Azilah and Sirul Azhar.
Justice Tengku Maimun said the court found that High Court judge Mohd Zaki Md Yasin had made no finding on whether the prosecution had established that there was a prearranged plan by the two policemen to commit murder and that murder was committed pursuant to the prearranged plan.
“In our judgment, the absence of such a finding by the learned trial judge on the ingredient of common intention amounted to a misdirection by way of non-direction,” she said.
On the call logs and coverage predictions, she said the court found that the testimonies of three witnesses from several telco companies had put into issue the reliability and accuracy of the call logs and the coverage prediction.
Justice Tengku Maimun said it was essential for the trial judge to address his mind to the challenge raised by the defence on the exhibits and to make a finding whether there was an alteration or tampering of the data and whether the authenticity of the data was questionable or otherwise.
“Regrettably, the High Court judge failed to do so, which in our judgment amounts to serious misdirection rendering the said exhibits unsafe to be relied upon,” said the judge.
On other grounds, the court held that the trial judge did not direct his mind and did not examine whether the contradictions or inconsistencies in the evidence of the prosecution witnesses were material.
She said the trial judge also did not examine the credibility of the prosecution witnesses and did not address his mind whether Azilah and Sirul Azhar had raised a doubt about the accuracy of the statements by them under Section 27 of the Evidence Act 1950.
Justice Tengku Maimun also said the trial judge did not direct his mind whether the discovery of the crime scene and the deceased’s jewellery was made by virtue and exclusively as a result of the information supplied by the duo andnot from other sources.
She said the court found that there was a non-direction by the trial judge in failing to evaluate the evidence before admitting the statements under Section 27.
On another ground, Justice Tengku Maimun said the court found that there was no evidence to show any nexus between slippers with Altantuya’s blood stains which were found in Sirul Azhar’s jeep, with him (Sirul Azhar).
She also said the prosecution had not closed the gap in its case on this issue.
Similarly, the judge said, on the spent cartridge recovered from inside the car of Sirul Azhar who was the second accused, the court found that there was a gap in the prosecution’s case which the trial judge had failed to direct hismind to.
Finally, the court also held the failure of the prosecution to call or offer for cross-examination of DSP Musa Safri who was at that time aide-de-camp of the deputy prime minister Najib Tun Razak, would have triggered the adverse inference under Section 114 (g) of the Evidence Act, against the prosecution.
“In so far, as the non-calling of DSP Musa is concerned, on the facts of this case, the evidence of DSP Musa is essential to unfold the narrative upon which the prosecution’s case is based on,” said the judge.
Material witness
Commenting on the judgment, Azilah’s lawyer Hazman Ahmad was glad that the court accepted the defence’s argument.
“There were many issues that we raised in the High Court that were not addressed.
“For example. the Celcom call log did not prove that my client was at the murder scene. We also had an alibi that my client was at Bukit Aman at the time of the murder.
He added that there was no proof that indicated that Altantuya was murdered using C4 explosives.
Kamarul Hisham, meanwhile, pointed out that the prosecution’s failure to call DSP Musa Safri was the prosecution’s undoing.
“The calling of DSP Musa Safri could have explained a lot of issues. It affected the prosecution’s case.
Azilah’s fiancee, Nor Azilah Baharudin, 35, who was met outside the courtroom was happy with the verdict.
“It has been seven years. We knew he would be released,” said the fiancee who works as an operations manager in a private company.
Meanwhile, Deputy Solicitor General Tun Majid Tun Hamzah confirmed that the prosecution team would be appealing against the acquittal.
Chronology of events
Oct 9, 2006: Altantuya, younger sister Altantzul Shaariibuu, 27, and a cousin, Burma alias Amy, 28, arrive in Kuala Lumpur and stay at a hotel in Jalan Petaling, Kuala Lumpur.
Oct 10: Altantuya is said to have engaged a private investigator to trace a Malaysian man.
Oct 21: Altantuya’s sister and cousin make a police report on her disappearance on Oct 19. Police investigate and pick up a woman lance corporal from the Petaling Jaya Police Station.
Oct 26: Chief Insp Azilah Hadri of the Unit Tindakan Khas (UTK) in Bukit Aman is arrested.
Nov 6: Corporal Sirul Azhar of the UTK in Bukit Aman is arrested.
Nov 7: Police find bits of Altantuya’s remains near the Subang Dam in Puncak Alam, Shah Alam. Prime Minister Najib Tun Razak’s former speech writer Abdul Razak Baginda is picked up at his office in Jalan Ampang, Kuala Lumpur. Sirul Azhar is remanded until Nov 13 to help with the investigation into the murder.
Nov 8: Abdul Razak is remanded for five days until Nov 12 to help with the investigation into a kidnapping. Azilah and the woman lance corporal are remanded until Nov 13 to help with the investigation into the murder.
Nov 9: Two private investigators, aged 35 and 46, are remanded until Nov 13 to help in the investigation into criminal intimidation. Altantuya’s father, Shaariibuu Setev, accompanied by three relatives arrive in Kuala Lumpur and stay at a hotel in Bukit Bintang, Kuala Lumpur, to assist police in their investigation. Shaariibuu gives evidence at the Kuala Lumpur police headquarters.
Nov 10: Shaariibuu gives his DNA sample to the Kuala Lumpur Hospital to help determine whether the remains found at Puncak Alam are that of Altantuya. DNA samples are also taken from Abdul Razak and the three police personnel.
Nov 11: Abdul Razak is admitted to the Kuala Lumpur Hospital for treatment of a lung infection and asthma.
Nov 12: The remand order on Abdul Razak is extended by two more days.
Nov 13: The remand orders on the three police personnel are extended further while the two private investigators are released.
Nov 14: The remand order on Abdul Razak is extended by two more days.
Nov 15: Azilah and Sirul Azhar are charged in the Shah Alam Magistrate’s Court for the murder of Altantuya under Section 302 of the Penal Code, which carries a mandatory death sentence upon conviction. The woman lance corporal is released on police bail. The DNA test confirms that the remains found at Puncak Alam are that of Altantuya.
Nov 16: Abdul Razak is charged in the Kuala Lumpur Magistrate’s Court with abetment in the murder of Altantuya under Section 109 of the Penal Code, read together with Section 302 of the same code, which carries the mandatory death sentence upon conviction.
Oct 31, 2008: Abdul Razak, who was charged with abetting them, acquitted by the High Court after the prosecution failed to establish a prima facie case against him.
April 2009: Azilah and Sirul Azhar Umar, 39, were convicted and sentenced to death by the High Court in Shah Alam in 2009, for murdering Altantuya, 28, at Mukim Bukit Raja in Shah Alam between 10pm on Oct 19, and 1am on Oct 20, 2006.
Aug 2013: The Court of Appeal releases the two former policemen due to lack of evidence. Prosecution says it will appeal.
